Opinion
V-XXXXX-20
03-18-2021
JJ, Plaintiff, v. TW, Defendant.
Recitation, as required by CPLR 2219(a) of the papers considered in review of this motion:
PAPERSNUMBERED
Order to Show Cause, Affidavits and Exhibits AnnexedNYSCEF Documents 9-18
Answering Affidavits and Exhibits AnnexedNYSCEF Documents 19-20, 24-25
Reply Affidavits and Exhibits AnnexedNYSCEF Documents 26-32
Upon the foregoing cited papers and after oral argument, the court finds as follows:
Plaintiff moves by Order to Show Cause (Motion Sequence 1) for an order i) terminating all spousal support awarded to Defendant, by the Order of Support entered on February 7, 2020 in Kings County Family Court, given the short duration of the parties’ marriage and that the temporal period for the so-ordered bi-weekly payments has far exceeded the durational guidelines therefor; ii) re-calculating the amount of child support, the pro-rata allocation for add-ons, together with a re-evaluation of childcare, based upon the parties 2020 earned income and changed circumstances; and iii) consolidating with the instant action the two pending Kings County Family Court proceedings, the first commenced by Defendant, as Petitioner therein, under Docket No. V-XXXXX-20, and the second commenced by Plaintiff, as Petitioner therein, under Docket No. V-XXXXX-20, both under File No. XXXXXX.
Background
The parties were married on August 20, 2017. They share one child, born in 2018. According to the Plaintiff, the parties separated on November 23, 2019.
On January 8, 2020, Defendant herein filed a petition against Plaintiff in Kings County Family Court for spousal and child support. By Order of Support dated February 10, 2020, a Support Magistrate directed Plaintiff to make bi-weekly payments of $598.81 for child support, $147.69 for childcare, and $383.19 for spousal support. The order further directed Plaintiff to pay his 64% pro-rata share of unreimbursed medical expenses for the child.
On March 2, 2020, Plaintiff filed objections to the support order, followed by Defendant's rebuttal to the objections, dated March 13, 2020. By order dated September 2, 2020, a Judge of the Kings County Family Court denied Plaintiff's objections and continued the support order.
On August 28, 2020, Plaintiff commenced the instant action for divorce in Kings County Supreme Court.
Termination of Spousal Support
Plaintiff moves to terminate spousal support payments to Defendant on the ground that, as of the date of his application, he has "tendered 13 consecutive monthly payments, more than double the amount of the calculated durational period" set forth by the post-divorce maintenance advisory durational guidelines. The guidelines referenced by Plaintiff are set forth in the Domestic Relations Law (DRL) as an "advisory schedule" that a court may use in determining the duration of post-divorce maintenance ( see DRL § 236[B][6][f] ). According to the schedule, the duration of post-divorce maintenance in marriages of 0 to 15 years should be between 15 to 30% of the length of the marriage ( id. ). Thus, in a marriage of three years or 36 months, the suggested duration of post-divorce maintenance is anywhere from 5.4 (15%) to 10.8 (30%) months ( id. ).
The matter before this court is, of course, at a pre-divorce posture. Moreover, the support order Plaintiff challenges was issued in Family Court pursuant to Family Court Act (FCA) section 412. While the spousal support statute in the FCA mirrors the temporary maintenance statute in the DRL in many respects, there is a significant difference in the two statutes with respect to duration ( compare FCA § 412with DRL § 236[B][5-a] ). DRL § 236[B][5-a][f] expressly states "the court shall determine the duration of temporary maintenance by considering the length of the marriage." DRL § 236[B][5-a][g] further provides that "temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first." The FCA, on the other hand, does not relate the duration of spousal support to the length of the marriage. Rather, the FCA provides that unless modified upon a showing of a substantial change in circumstances, any order of spousal support issued pursuant to FCA section 412 shall continue until the earliest of one of the following: a written or oral stipulation or agreement between the parties; the issuance of a judgment of divorce or other order in a matrimonial proceeding; or the death of either party ( see FCA § 412[10] ).
Here, Plaintiff has failed to show a substantial change in circumstances warranting termination or modification of the spousal support order. Moreover, had the support in question been issued as temporary maintenance pursuant to the DRL, modification of a pendente lite award should be rarely made and only where there are exigent circumstances, " ‘such as where a party is unable to meet his or her financial obligations, or justice otherwise requires’ " ( see AK v TK , 150 AD3d 1091, 1094 [2nd Dept 2017] [internal citations omitted]).Here, Plaintiff has failed to demonstrate that he lacks sufficient resources to pay the spousal support or otherwise demonstrate any exigent circumstance justifying termination of the support order ( see Yerushalmi v Yerushalmi , 136 AD3d 809, 811 [2nd Dept 2016] [Supreme Court's denial of defendant's motion to terminate temporary maintenance obligation found proper where defendant failed to establish that he did not have sufficient resources to pay temporary maintenance to the plaintiff]). Plaintiff's perceived inequity with the support order issued in Family Court can be remedied by a speedy trial in the divorce action now pending in Supreme Court ( see AK v TK , 150 AD3d at 1094 [internal citations omitted]).
Re-Calculation of Child Support and Pro-Rata Allocation for Add-Ons
With respect to child support, both the FCA and the DRL provide for the modification of an order of child support under certain specified conditions. An order of child support may be modified upon a showing of a substantial change in circumstances ( FCA § 451[3][a] ; DRL § 236[B][9][b][2][i] ). Additionally, a child support order may be modified where three years have passed since the order was entered, last modified or adjusted ( FCA § 451[3][b][i] ; DRL § 236[B][9][b][2][ii][A] ) or where there has been a change of 15% or more in either party's gross income since the order was entered, last modified or adjusted ( FCA § 451[3][b][ii] ; DRL § 236[B][9][b][2][ii][B] ).
As it has been less than three years since the child support order at issue here was entered, Plaintiff must meet one of the other conditions for modification. While Plaintiff asserts that his overtime hours have been cut down to zero resulting in a reduction in his annual income, he has failed to establish that his income has changed by at least 15%. Plaintiff has also failed to establish a substantial change in circumstances based on his claim that the parties’ child will be eligible for Pre-K enrollment soon and that a reduction of childcare hours is anticipated ( see Matter of Abizadeh v Abizadeh , 173 AD3d 1168 [2nd Dept 2019] ). Accordingly, Plaintiff's application for re-calculation or a downward modification of his child support obligation and pro-rata share of add-on expenses, including childcare, is denied.
Consolidation
Plaintiff's application for an order consolidating the actions presently pending in Kings County Family Court under Docket Nos. V-XXXXX-20 and V-XXXXX-20, (File No. XXXXXX) is granted on consent of Defendant. The court will issue a separate consolidation order.
Conclusion
Accordingly, Plaintiff's Order to Show Cause filed under Motion Sequence 1 is granted solely to the extent that the actions currently pending in Kings County Family Court shall be consolidated with the instant divorce action.
In all other respects, the motion is denied.
This constitutes the decision of the court.